R v Alsharify [2019] NSWDC 795

District Court New South Wales

Medium Neutral Citation: R v Alsharify [2019] NSWDC 795 Hearing dates: 14-16, 19-23, 26 August 2019 (Trial), 18 October 2019 (Sentence Hearing) Date of orders: 08 November 2019 Decision date: 08 November 2019 Jurisdiction: Criminal Before: Hatzistergos DCJ Decision: See [81]-[83] Catchwords: SENTENCING – Reckless wounding – Assessment of facts based on jury verdict – Use of sword – Whether moral culpability reduced due to Iraqi background – Extent of protective factors providing for good prospects of rehabilitation Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Dipangkear v R [2010] NSWCCA 156 Elsobky v R [2006] NSWCCA 168 R v Bednarz [2000] NSWCCA 553 R v West [2014] NSWCCA 250 Shaw v R [2008] NSWCCA 58 Texts Cited: N/A Category: Sentence Parties: Regina (Crown) Ahmed Alsharify (Offender) Representation: Counsel:

Ms E. Curran (Crown Solicitor Advocate) Mr F. Santisi (For the Offender)

Solicitors: Director of Public Prosecutions Abbas & Co Lawyers File Number(s): 18/95967 Publication restriction: N/A

Judgment 1. On 14 August 2019 the Offender was arraigned before me in relation to charges that on 26 March 2018 in Canley Vale: 1. he did wound Faysal Faysal with intent to cause grievous bodily harm contrary to section 33(1)(a) of the Crimes Act 1900 (NSW); and in the alternative that 2. he recklessly wounded Faysal Faysal contrary to section 35(4) of the Crimes Act 1900 (NSW). 1. Following an eight day trial the jury found the Offender not guilty of the principle charge, but guilty of the alternative. 2. The Offender is now to be sentenced in relation to the offence of which he has been found guilty and which carries a maximum penalty of 7 years imprisonment, and a standard non-parole period of 3 years. 3. First it is necessary for me to determine the facts on which the Offender is to be sentenced consistent with the jury's verdict. 4. The Offender was in a relationship with Ms Eman Eliaali at the time of the offence. The Victim, Mr Faysal Faysal, was the ex-boyfriend of Ms Eliaali. There was an enforceable AVO, with Ms Eliaali as the person in need of protection. On the evening of 25 March 2019 the Victim stayed over at Ms Eliaadi's unit at Canley Vale. 5. At about 11:00am on 26 March 2018, Ms Eliaali attended the Liverpool Police Station. She was accompanied by the Offender and complained about the Victim who was staying at her apartment at Canley Vale. Ms Elliaadi stated that that day she and the Offender "got back together." [1] There was evidence from Ms Elliaadi that she reported to the police that the Victim had assaulted her the previous evening. No immediate action appears to have been taken by the police. 6. After spending the day together, the Offender drove Ms Eliaali and her three children aged 5, 7 and 9, back to her unit at Canley Vale and parked in the unit car park. 7. Ms Eliaali stated that the Victim and the Offender had not previously met although they knew of each other. [2] At first the Victims' evidence was that he never had any prior contact with the Offender but knew things about him that Ms Eliaadi had told him. Subsequently he stated that he had spoken to the Offender but didn't remember if it was before or after the incident. [3] 8. At about 7:15pm the Offender went upstairs to make sure the Victim wasn't there and Ms Eliaali and her three children stayed in the car, as Ms Eliaali was scared to go up herself. The Offender entered the unit and there was a confrontation with the Victim who at that point had yet to depart. 9. During that incident, the Victim asserted that the Offender said to him, "Are you still here?" and "You still sleeping?", to which the Victim responded, "What – what's for you in this? I don't know you." The Offender is then said to have approached the Victim, taking out a samari sword from a cover which he described as being black and brown. The Victim stated that the sword was one metre in length and that it had a handle and the Offender was swinging it around in the air. 10. The Victim stated that when the Offender asked, "Are you still asleep here?" andhe stood up because the Offender had the sword out of its cover. [4] He described the Offender has having the sword in one hand and the cover in another, [5] and then dropping the cover. [6] He stated at that point, the Offender had walked through the door. [7] 11. The Victim said that the Offender told him to get out, and he responded with "You get out first and I will follow you." The Victim described the sword being swung in his direction and that he did not get close to him. At that point, the Victim said that he grabbed his bag, and the Offender left the apartment, and he followed him into the car park close to where the Offender had his car. 12. It was accepted however, that the Victim had told police in answer to a question in an interview "the door was open and Ahmed entered the room, he turned the light on and started swearing". The Victim stated that if that was recorded, that was a mistake. [8] He said that he was able to see the sword notwithstanding the light being off, because there was light coming though the hallway, the window. [9] He agreed that he told Police that the Offender left the cover in the apartment. [10] He accepted that he told Police many times to go and look for the cover in the apartment. [11] 13. The Victim stated that when he got down the stairs, he remembered seeing Ms Eliaali in the car, but later she was standing outside the car park, although he was not sure about the location of her children. [12] 14. The Victim described that the Offender pulling out the sword and kept circling around the car. He further described the Offender as taking an oath in the name of Eman Eliaali that he would kill him. At that point, Ms Eliaali was standing outside the fence of the car park. 15. The Victim described being hit with the sword and falling to the ground on his back. After he fell on the ground he stated that the Offender hit him on his head and on his upper arm, but it only caused a slight wound. [13] Later in his evidence the Victim said that the Offender caused injuries to the head and upper arm "before he hit me into-onto my back." [14] Thereafter, the Victim stated that he grabbed a piece of wood swung it at the Offender leading the Offender to run out of the car park and the Victim used the wood to hit the front of the Offender's car. During this period, he described Ms Eliaali as standing outside the fence and speaking on the phone. [15] The Victim stated that he called on the Offender to "come from across the fence." [16] 16. Ms Eliaali gave evidence, in which she denied that the Offender had a sword at all. However, admitted into evidence as Exhibit O was a statement given to Police soon after the offence in question, where Ms Eliaali stated that the Offender decided to go upstairs into the unit upon their arrival, as she was scared to go up herself. A few minutes later, she said she heard the Victim state "Get outside" and she got out of the car and called the police as the Victim was not supposed to be there. She then looked up at the staircase, and saw the Victim running down. She and the children went towards to the intersection of Canley Vale road. Subsequently, they looked back to see what was happening. 17. According to Ms Eliaali's statement, the Offender had the Victim up against a brick pillar and they were hitting one another. The Offender then armed himself with a sword at one point, and the Victim armed himself with a long piece of wood and they were chasing each other around the car whilst holding the weapon. She stated that the Victim tripped and fell into a garden, at which point the Offender raised the sword and swung it towards the Victim, striking him in the lower back. The Offender then walked out to Canley Vale Road in a direction towards the shops. 18. The Offender's possession of a sword in the vicinity of the unit complex was witnessed by Anna Nguyen and Stephen Tran. Ms Nguyen described it as around 75 cm in length, [17] although the Victim stated that it was approximately 1 metre in length. [18] Mr Tran described it as a long sword with a sharp edge and a hilt. [19] He drew a diagram which was tendered as Exhibit D. Ms Nguyen rang triple 0 and Mr Tran participated in the call. 19. The Offender was seen to be walking with no shirt, and with a sword in his hand. Police attended and stopped the Offender; however, he was not holding a sword at the time. The Offender was then cautioned, arrested and conveyed to Fairfield Police Station, where he refused to participate in an electronically recorded interview. 20. The Offender gave evidence at the trial denying that at any time he had a sword. His account was rejected by the jury. 21. The Victim suffered associated bruising to the chest wall and multiple abrasions to the right bicep, right hand, an abrasion to the head, and grazing to his arms. Relevantly, the wound comprised a 7 cm cut to the left flank. He was taken to Liverpool Hospital for treatment, and the wound was the subject of a glue repair. 22. Neither the sword, nor any cover, was located by Police.